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Source link: http://archive.mises.org/11494/reducing-the-cost-of-ip-law/

Reducing the Cost of IP Law

January 20, 2010 by

How should the IP system be reformed? For those with a principled, libertarian view of property rights, it is obvious that patent and copyright laws are unjust and should be completely abolished. FULL ARTICLE by Stephan Kinsella

{ 252 comments }

Peter Surda January 23, 2010 at 7:17 am

Dear Kerem,

> Lockean/Rothbardian theory that only justifies
> homesteading. It is not a positivist theory deciding
> what can and what can not property by arbitrary
> distinctions.
That what you are calling “Lockean/Rothbardian theory” is actually “Lockean/Rothbardian theory” + “Kerem Tibuk’s arbitrary axioms”. You need to understand this before we progress any further.

Russ January 23, 2010 at 8:04 am

newson wrote:

“the justification of private property is not that it creates more wealth, that is a happy side-effect. it’s that it is the only way to avoid universal violence…”

Isn’t avoiding a war of all against all for material goods useful?

“…are you suggesting the imposition of violence to increase overall utility? or that a certain amount of violence is ok, but not too much?”

Well, you know the answer to that question, newson, because you know that I’m a minarchist. Do the math. Anyway, even in Ancapistan, you’d have to impose violence on some people to get them to leave other peoples’ property alone.

“besides the history of radio prior to the fcc shows regulation wasn’t necessary for a florid radio industry.”

When did I ever mention the FCC? I’m just talking about having rights in EM spectrum. That doesn’t necessitate a regulatory agency, only courts of law, and a registration mechanism of some sort.

“you surely don’t expect everyone in a given radius to shut up when you talk, using scarce audible frequencies, so give random a break.”

I expect that they don’t speak so loud that I’m not able to carry on a conversation.

Russ January 23, 2010 at 8:43 am

ABR wrote:

“Russ wrote: “Even if the airport came first, and then people buy surrounding land, what then? Would easement right conditions be attached to their property? How so?”

By action. The planes are flying over the newcomers’ land. Every day.”

So? The newcomer’s land was previously unowned, so there could have been no easement contracts with the non-existent former owners. So when the newcomers came, there were no easement contracts to bind them. So I don’t see how you could use easements to get this right to make noise, in this case.

If you’re saying that by making noise (or radio waves) before the newcomers came, the airport homesteaded the right to make noise (or radio waves) in that area, I’m not sure that follows from pure property rights. The so-called “homesteader” can emit noise, radio waves, pollution, whatever, as long as the surrounding area is unowned, sure. Who could object except maybe an eco-nazi? But once the land is homesteaded (and in a pure physical property rights system, only physical property such as land *can* be homesteaded), the first guy is now emitting noise, or whatever, onto somebody else’s property. He’s violating their rights.

If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights. Likewise with homesteading the right to emit radio waves. If somebody homesteads land, they now own *physical* property. But if somebody homesteads “the right to emit radio waves at X Mhz over a given area”, they haven’t homesteaded *physical* property. They’ve homesteaded a more abstract right which we have been calling EM spectrum “property”. Once you say that somebody can do that, I think you’ve just admitted EM spectrum rights, as I conceive them.

Russ January 23, 2010 at 9:21 am

Peter Surda wrote:

“I already explained why this definition is problematic. Any action whatsoever that is undesired can be declared trespass.”

I think this is similar to the point I made against Silas when we were talking about his IP theory. I said that just because he desires to use his property to get such-and-such a result, and that I “interfered” with his desire, that does not necessarily mean that I violated his rights.

ABR January 23, 2010 at 12:29 pm

Russ wrote: “If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights.”

I agree. That is, this form of homesteading is a weaker proposition than the primary form: mixing one’s labour with the land. However, I do think this form of homesteading is essential to life. Water rights, in particular, would not exist without this form of homesteading.

How can a person mix his labour with a river, other than by damming or diverting? If a person wishes to siphon water for drinking or irrigation, he establishes a right to proportional consumption. If we don’t grant him that right, then we’re back to the tragedy of the commons.

Jay Lakner January 23, 2010 at 3:50 pm

Kerem Tibuk,

Please answer Magnus’ question:

“Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?”

pro-IP-libertarian January 23, 2010 at 4:08 pm

Peter Surda-

Duplication is a metaphor, it is not an empirical phenomenon.

No, duplication or copying is an identifiable and measurable human action.

The only reason that you claim that it is “the same product” is that it appears “too similar” to you, or has the same utility. This is a result of subjective evaluation rather than objective reality.

No, there was definitely a first Stephen King novel. Or a first motorcycle. These wouldn’t have existed without the intellectual and to some degree physical homesteading of the creator.

Duplicating or copying these can be distinguished from the creation of the first one. They wouldn’t be possible, by definition, without the creation of the first one.

So does the selling of substitutes, finding ways of increasing productivity or criticising the features of the product. It implies that the creator owns his market share.

Those don’t involve using the creator’s homesteaded or owned property. Me starting another beach house bed and breakfast further down the beach from yours isn’t stealing from you. Grazing my llama herd directly on the lawn of yours is akin to stealing.

To put it more succinctly: Duplication is not equivalent to creation. Competing, alternate creation is equivalent to creation.

This is why I dislike the word “scarce”. It leads to confusion. IP is non-rival, consumption does not decrease supply.

It is rivalrous in the way radio spectrum or real property is rivalrous – duplication without homesteading or license crowds out profitable use the way overlapping broadcasting or trespassing does.

Note again this is not preventing competition, alternate homesteading – true alternate creation – is available.

pro-IP-libertarian January 23, 2010 at 4:27 pm

Peter Surda-

The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.

You’re arguing by definition. In the case of real property, you are saying exclusion is a necessary condition for the ability to use and trade the good. The same is true for IP. Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced. The value is created and maintained by the legal system. Likewise with IP.

Indeed, because these problems are the result of natural features of rival goods. Yet, if we took away exclusion from non-rival goods, apart from some revenue redistribution and some business models becoming unprofitable there are no other negative effects and a plethora of positive ones. The same results would occur when any artificial monopoly or redistribution scheme were cancelled.

Subjectively, there would be many positive effects for many people with the abolishment of real estate exclusions. The price for subsistence-level living would go way down – all you would need is a tent or car with a camper for shelter. If the “monopoly” or “redistribution scheme” for intellectual property homesteading is “artificial”, the one for real property can be characterized as such as well.

pro-IP-libertarian January 23, 2010 at 4:54 pm

Scott D-

This is where the socialists try to weasel their way through with much the same arguments that the pro-IP libertarian uses to justify their position. The money taken for government welfare programs is not theft because the benefits to society accrue back to the individual who is taxed, the socialist says. Functionally, this is little different from the arguments that claim the utilitarian benefits of an IP system.

Not at all. It’s akin to the real property rights system. The state provides a deed that proves ownership so that individual rights can be protected, trade can occur, etc. The IP law system does the same.

I could refer to the anti-IP crowd as collectivists for wanting to provide a public claim on homesteaded intellectual property. It’s “the people’s” music!

pro-IP-libertarian January 23, 2010 at 5:05 pm

Jay Lakner/Magnus-

Kerem Tibuk,

Please answer Magnus’ question:

“Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?”

Not to speak for Kerem here, but you are mixing metaphors. The Crusoe example refers to a case involving a primitive age, different countries, different cultures, etc.

Let’s put it this way: In the present day if someone offered you a free music download and it wasn’t the musician and wasn’t on one of the free websites you have a pretty good idea that you are violating copyright, even if you never met the musician before. You also know you could download the same song for a $1 or so on one of the paid services.

Stephan Kinsella January 23, 2010 at 5:31 pm

Kerem Tibuk:

“First of all I don’t know how it became that Kinsella is in the position of defending Lockean/Rothbardian property rights”

Because I’m the Uber-Lockean, of course!

“Lockean/Rothbardian theory … nowhere it is implied on scarce resources can be homesteaded. “First comer” principle can confuse people but that principle doesn’t say scarcity is prerequisite but instead it means “if there is scarcity, then the tie breaker is the first comer” principle.”

Right. And you guys undercut this: you say that if there is a scarce resource, say a piece of paper owned by A pursuant to Lockean homesteading, then B gets to control and use and own it, if B thinks of a way to use B’s own property. That means B is the tie breaker winner, even though B is not the first comer.

Kerem, very generous of you to self-PWN.

Russ January 23, 2010 at 6:03 pm

pro-IP-libertarian wrote:

“Peter Surda wrote: “The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.”

You’re arguing by definition. In the case of real property, you are saying exclusion is a necessary condition for the ability to use and trade the good. The same is true for IP. Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced. The value is created and maintained by the legal system. Likewise with IP.”

But exclusion is not a necessary condition for the ability to use and trade patterns. It’s certainly not necessary to use them; multiple people can easily use copies of patterns at the same time. People could also trade them, if they wished. Of course, the price would be very low, but that doesn’t mean that they couldn’t do it. It just means that can’t make the profit they would like out of it. You’re saying that this “reduces the value” just like with real property. But now you’re mixing meanings. Not having material property rights would “reduce the value” of real material in two senses; 1) the monetary value, and 2) the “use” value (the value you get out of something by using it). Not having IP rights would only reduce the value of the pattern in the monetary sense, but not in the use sense.

Russ January 23, 2010 at 6:11 pm

Stephan Kinsella wrote:

“…I’m the Uber-Lockean…”

Yeah, well I’m still the evil utilitarian Ãœbermensch! MWAHAHAHA!!!

“Kerem, very generous of you to self-PWN.”

Ya know, if you’re going to take pokes at Kerem this way, it’s not fair that you ask him to be civil, too.
Pick one.

Peter Surda January 23, 2010 at 6:47 pm

Dear pro-IP-libertarian,

> No, duplication or copying is an identifiable and
> measurable human action.
You are mixing two things. Indeed, when you claim that copying occurs, your base for that claim is that you observe some human action. But you do not observe “the copying”.

> No, there was definitely a first Stephen King
> novel. Or a first motorcycle.
Yes, there were. So what?

> These wouldn’t have existed without the
> intellectual and to some degree physical
> homesteading of the creator.
Yes, there is a causal relationship. So what? This does not prove that Stephen King’s novels or motorcycles, respectively, share some mystical identity.

> Duplicating or copying these can be
> distinguished from the creation of the first one.
Yes, it can. But that does not prove that they are “the same”. You say yourself that they can be distinguished, and at the same time claim that they are “the same”. Does the dichotomy not bother you?

> They wouldn’t be possible, by definition, without
> the creation of the first one.
Again, so what?

(substitutes & critisizing)
> Those don’t involve using the creator’s
> homesteaded or owned property.
You are assuming your conclusion.

> Me starting another beach house bed and
> breakfast further down the beach from yours
> isn’t stealing from you.
Yet according to you, selling another book is. Again, does the dichotomy not bother you?

> Grazing my llama herd directly on the lawn of
> yours is akin to stealing.
At least we can agree on something.

> To put it more succinctly: Duplication is not
> equivalent to creation.
Surprisingly, this does not stop you from claiming that the duplicate is “the same” as the original.

> Competing, alternate creation is equivalent to
> creation.
This is a correct, however it only addresses the causality issue.

> It is rivalrous in the way radio spectrum or real
> property is rivalrous – duplication without
> homesteading or license crowds out profitable
> use the way overlapping broadcasting or
> trespassing does.
A couple of paragraphs above you said that it does not bother you when another bed and breakfast crowds out profitable use of yours. Besides, you fail to explain why you reject my definition, other than that you need your in order for your theory to be valid.

Rival goods are evident. If you consume them, they are gone. Forever. No more. No matter how you twist the meaning or change the laws.

> Note again this is not preventing competition,
> alternate homesteading – true alternate creation
> – is available.
This distinction is only valid if you re-define trade as a unilateral declaration instead of a bilateral agreement. In other words, if one owns a market share.

> You’re arguing by definition.
No, you are.

> In the case of real property, you are saying
> exclusion is a necessary condition for the ability
> to use and trade the good.
Actually, I’m not. I’m claiming that for rival goods, exclusion is a necessary condition for the ability to use and trade the good.

> The same is true for IP.
No, it’s not.

> Theoretically, you could use and trade real
> property without exclusion but the value would
> be greatly reduced.
Now you are using the value definition of property, which was discredited several times during the course of the IP debates on this blog, and before that by actual economists. Therefore, this sentence is irrelevant.

> The value is created and maintained by the legal
> system. Likewise with IP.
Value is created by markets. IP or no IP. Irrelevant.

> Subjectively, there would be many positive
> effects for many people with the abolishment of
> real estate exclusions.
Yes, there would. However, they real estate would become unavailable to those that owned it before.

Philip January 23, 2010 at 10:03 pm

The documentary The Future of Food discusses some interesting problems with patents related to genetic engineering of plants.

The first fifteen minutes will discuss most of the patent problem which came to a head in the Monsanto Canada v. Schmeiser case.

pro-IP-libertarian January 24, 2010 at 5:47 am

Stephan Kinsella-

Right. And you guys undercut this: you say that if there is a scarce resource, say a piece of paper owned by A pursuant to Lockean homesteading, then B gets to control and use and own it, if B thinks of a way to use B’s own property. That means B is the tie breaker winner, even though B is not the first comer.

Yet you think it is entirely reasonable for X to prevent Y from using their transmission equipment on certain frequencies. It’s Y’s transmission equipment! You’re violating Y’s property rights!

In a slightly more extreme example, you forbid me from herding my tired llamas across the yard of your beach house. But you have full use of the rest of the property, and the yard after I’ve moved them along. The humanity!

pro-IP-libertarian January 24, 2010 at 6:52 am

Russ-

But exclusion is not a necessary condition for the ability to use and trade patterns. It’s certainly not necessary to use them; multiple people can easily use copies of patterns at the same time.

Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house. Exclusion aids in effective use and trade in both instances.

Not having IP rights would only reduce the value of the pattern in the monetary sense, but not in the use sense.

There is plenty of evidence to suggest people derive other benefits from restricting access. People derive lots of psychic and aesthetic benefits from “exlusivity”, not in the economic sense but in the sense of rarity, novelty, salience, etc.. Exclusive fashions, exclusive country clubs, cool/trendy teenage clothes, etc. So arguably use is effected as well. (Not saying this is rational or sensible, just stating it exists.)

pro-IP-libertarian January 24, 2010 at 7:37 am

Peter Surda-

You are mixing two things. Indeed, when you claim that copying occurs, your base for that claim is that you observe some human action. But you do not observe “the copying”.

Yes, there were. So what?

Yes, there is a causal relationship. So what? This does not prove that Stephen King’s novels or motorcycles, respectively, share some mystical identity.

You admit that creation can be distinguished from duplication. Creation: creating a new item or type of item. Duplication: making a copy of a created item.

I’m not saying that there is anything “mystical” about creation, just that it is involves the intellectual homesteading of property, duplication does not. You are the one equating creation with duplication and claiming they are equivalent.

Yes, it can. But that does not prove that they are “the same”. You say yourself that they can be distinguished, and at the same time claim that they are “the same”. Does the dichotomy not bother you?

You are the one claiming that duplication is equivalent to creation, not me.

Surprisingly, this does not stop you from claiming that the duplicate is “the same” as the original.

Where do I claim that? When Stephen King licenses his publisher to make copies of his books, that is him profiting from his creation. If some copycat publisher made copies without permission, that would be infringing duplication. If the same copycat publisher actually got a license to print Michael Crichton books that would be alternate creation, which would be acceptable, honest competition. Where have I claimed they are “the same”?

On the other hand, you are the one claiming that the copycat publisher nonconsensually duplicating Stephen King’s original creation is the same as his publisher printing licensed copies. They are not the same.

A couple of paragraphs above you said that it does not bother you when another bed and breakfast crowds out profitable use of yours. Besides, you fail to explain why you reject my definition, other than that you need your in order for your theory to be valid.

With a competing bed and breakfast, the owner actually homesteaded their own property. With competing IP, the owner actually homesteaded their own property as well. With my llama herd, I am infringing or trespassing the homesteaded owner’s property. With unlicensed duplication, I am infringing the homesteaded owner’s property.

Rival goods are evident. If you consume them, they are gone. Forever. No more. No matter how you twist the meaning or change the laws.

Broadcasting band is perpetual and it is considered rivalrous. Real property is basically perpetual and it is considered rivalrous.

This distinction is only valid if you re-define trade as a unilateral declaration instead of a bilateral agreement. In other words, if one owns a market share.

Not sure about your phrasing here. The distinction already exists for broadcasting band and real property yet we don’t consider that “owning market share”. You are free to homestead or purchase other real estate or broadcast band and compete.

Now you are using the value definition of property, which was discredited several times during the course of the IP debates on this blog, and before that by actual economists. Therefore, this sentence is irrelevant.

Incorrect. It relies on homesteading, not valuation. Plenty of valueless IP has been homesteaded.

Value is created by markets. IP or no IP. Irrelevant.

Incorrect, quite relevant. You yourself stated that real estate relies on the state recognized ability to exclude so that it can trade effectively. So value is created by markets, but the state recognized ability to exclude enhances the value of the property on some markets.

Yes, there would. However, they real estate would become unavailable to those that owned it before.

No, they would just lose the ability to exclude. You would still own the beach house, you would just have to co-exist with my llamas and any other members of the public that wanted to occupy the property. With the right business model you might be able to turn a profit.

Magnus January 24, 2010 at 8:06 am

Not to speak for Kerem here, but you are mixing metaphors. The Crusoe example refers to a case involving a primitive age, different countries, different cultures, etc.

Not to speak for Kerem, either, but (a) he brought it up, so I assume that he thinks Crusoe’s property rights are relevant, and (b) Kerem also spends a lot of time defending IP, and property generally, on the grounds that property rules arise even in a condition of social isolation, and he bjects strongly to the proposition that property rights are assigned by social convention.

I assume that means that Kerem Tibuk thinks that property rights exist independently of the “age,” culture, nationality, etc. of the people involved. You know, since he works so hard to purge himself of all contradiction and error, so he tells us.

But then again, since he has avoided answering a simple follow-up question about his Crusoe scenario for several days now, I really have no way of knowing what Kerem Tibuk thinks, other than that he’s afraid to answer the question.

Let’s put it this way: In the present day if someone offered you a free music download and it wasn’t the musician and wasn’t on one of the free websites you have a pretty good idea that you are violating copyright, even if you never met the musician before. You also know you could download the same song for a $1 or so on one of the paid services.

I would only know that I am “violating copyright” because the people who presume to call themselves “the state” and “legislators” tell me that copyright exists.

Like everything else legislators do, I ignore such verbiage as though it were idle wind.

pro-IP-libertarian January 24, 2010 at 9:32 am

Magnus-

I would only know that I am “violating copyright” because the people who presume to call themselves “the state” and “legislators” tell me that copyright exists.

Like everything else legislators do, I ignore such verbiage as though it were idle wind.

If something is against the law – legitimately or illegitimately – that tactic works fine until they start enforcing the law.. And there are natural rights arguments supporting IP so it isn’t necessarily illegitimate.

Jay Lakner January 24, 2010 at 10:16 am

arrgh … my post got eaten. It seems to be happening more often recently. I’ll try and recap what I wrote.

pro-IP-libertarian,

Whether or not a person knowingly commits a violation of current copyright laws is irrelevent to the question as to whether those laws should exist in the first place.

Magnus’s Crusoe example to Kerem Tibuk was a good one as it outlines the dangers of believing that the Universe contains fundamental “oughts”. Kerem, as usual, ignores questions which outline deficiencies in his position. That is why I brought it up.

pro-IP-libertarian January 24, 2010 at 11:56 am

Russ-

You wrote to Kerem:

As should you. The Lockean labor theory of property applies to physical goods, not patterns or ideas. It is not at all obvious that the concept should extend to patterns or ideas.

I’m not a Locke scholar, but apparently Locke advocated a copyright term for writers of life plus 70 years when the Stationers’ company monopoly was being considered for renewal. (Monopoly as in only members of the company could be in the printing business, not the so-called “monopoly” of IP.) I have also seen others cite passages where Locke extended or showed a tendency to extend his labor theory of property to IP. See this abstract:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=936353

(Couldn’t find the 1694 memorandum, would have posted it if I could.)

That certainly shows a pretty strong tendency to support the notion of intellectual creations being the property of the creator. Stronger than present-day law, in fact.

Russ January 24, 2010 at 5:28 pm

pro-IP-libertarian wrote:

“Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house.”

So what? This argument is silly. You don’t even really believe that houses should be publicly owned property.

So let’s go back to my old post where I admitted that “use” of property wasn’t the issue with respect to exclusivity, but “possession” was, where “possession” can be understood as the ability to control the use of the property. Now, with that criteria, exclusivity *IS* necessary to *possess* real estate, since real estate is scarce. Exclusivity is also obviously necessary to possess radio channels, since they are also scarce.

It’s not so obvious that exclusivity is necessary to possess patterns or ideas, because they aren’t scarce. When you say that you “possess” IP, does that mean that you possess *an* instantiation of the pattern, or *every possible* instantiation of the pattern? If it’s the first, then you can still control the use of your instantiation without IP rights being necessary. Only in the second case do you need IP rights.

This raises the question, why *should* you have the right to control every possible instantiation of a pattern or idea? What is your justification for claiming this right? Because of causality; i.e. you created that pattern? So what? Because you want to make lots of money from selling the pattern as if it were scarce property? Again, so what? I still haven’t seen a good justification for why you should have this right.

As for Locke being for copyrights, I wasn’t aware of that. I haven’t actually read Locke for quite some time. At any rate, that doesn’t effect my argument, I don’t think, except that I was misusing the label “Lockean rights”.

pro-IP-libertarian January 25, 2010 at 11:14 pm

Russ-

So what? This argument is silly. You don’t even really believe that houses should be publicly owned property.

So what yourself. You said that exclusion wasn’t necessary to trade IP, I just pointed out that exclusion wasn’t necessary to trade real estate either. But it would be really, really difficult to do it and might be pointless in many cases. This is similar to how difficult it would be to profit from some kinds of IP without exclusion.

And no, I do believe in privately owned real estate, I was just playing devil’s advocate for the sake of argument.

So let’s go back to my old post where I admitted that “use” of property wasn’t the issue with respect to exclusivity, but “possession” was, where “possession” can be understood as the ability to control the use of the property. Now, with that criteria, exclusivity *IS* necessary to *possess* real estate, since real estate is scarce. Exclusivity is also obviously necessary to possess radio channels, since they are also scarce.

No, my examples pointed out it would be possible to use and even profit from real estate without exclusion, it just would be strained and difficult. Same for radio broadcasting band. This just illustrates how disingenuous the arguments are when applied to IP.

It’s not so obvious that exclusivity is necessary to possess patterns or ideas, because they aren’t scarce. When you say that you “possess” IP, does that mean that you possess *an* instantiation of the pattern, or *every possible* instantiation of the pattern? If it’s the first, then you can still control the use of your instantiation without IP rights being necessary. Only in the second case do you need IP rights.

They are scarce, you’ve admitted that elsewhere. There are free music services all over the place, yet people still want to copy protected music. Why? Because it is good. And because it is scarce. Duplication/copying is not equal to creation. And good creators – and their creations – are scarce.

About your other point: Exclusion – the creator being the only one to sell/license copies of their creation – is necessary for creators to reasonably profit from their creation. Just like real estate owners need exclusion to reasonably profit from owning real estate. That’s why real estate came into this.

This raises the question, why *should* you have the right to control every possible instantiation of a pattern or idea? What is your justification for claiming this right? Because of causality; i.e. you created that pattern? So what? Because you want to make lots of money from selling the pattern as if it were scarce property? Again, so what? I still haven’t seen a good justification for why you should have this right.

Natural rights – homesteading. Just like real estate homesteading. Why do you want to own real estate? Just because you want to make lots of money?

As for Locke being for copyrights, I wasn’t aware of that. I haven’t actually read Locke for quite some time. At any rate, that doesn’t effect my argument, I don’t think, except that I was misusing the label “Lockean rights”.

It does if you believe in natural rights. Even variations with a utilitarian basis.

Mashuri January 26, 2010 at 11:52 am

pro-IP-libertarian”

Broadcasting band is perpetual and it is considered rivalrous. Real property is basically perpetual and it is considered rivalrous.

I want to address this because I think you fail to make the distinction between why physical property and EM use (key distinction) are rivalrous, hence scarce, hence requiring exclusion and why IP is not. The former two may be “perpetual” but, at any given moment in time, they may only be used in an exclusive way. Two people cannot occupy the same space at the same time and two identical EM bands may not be used in the same space at the same time without interfering with each other. IP, on the other hand, can be used at the same time by unlimited amounts of people with no reduction in its supply or quality. In fact, its supply increases which, from a macro-utilitarian view, is typically good for an economy.

pro-IP-libertarian January 26, 2010 at 4:36 pm

Mashuri-

I want to address this because I think you fail to make the distinction between why physical property and EM use (key distinction) are rivalrous, hence scarce, hence requiring exclusion and why IP is not. The former two may be “perpetual” but, at any given moment in time, they may only be used in an exclusive way. Two people cannot occupy the same space at the same time and two identical EM bands may not be used in the same space at the same time without interfering with each other. IP, on the other hand, can be used at the same time by unlimited amounts of people with no reduction in its supply or quality. In fact, its supply increases which, from a macro-utilitarian view, is typically good for an economy.

Real estate would only be truly physically rivalrous in really small areas. Why not make those with estates and big yards allow the public to park their campers and tents on them? From a utilitarian view, that would drive lower income housing costs way down, which would typically be good for the economy.

And to stress again you are still equating duplication with creation – they are not equivalent. Good quality creators and creations are scarce. Allowing public claims on their creation misprices and disincentivizes their creation just like allowing public claims on private land would misprice and disincentivize its trade, investment, and development.

Now to head off claims that the examples aren’t equivalent, note that most anti-IP advocates claim that IP creators still have the use of their IP themselves, and can be first to market. In the “public claims on land” example land owners would still have use of their houses and living quarters for “personal use”, they would just have to cede their yards and estates to the public. Pretty equivalent. Ridiculous in both cases, but equivalent.

pro-IP-libertarian January 26, 2010 at 4:42 pm

Need to add: Note that it was Silas Barta that first pointed out that public claims on IP from the “duplication is equivalent to production” framing would lead to the mispricing of IP creation, similar to Mises’ exposure of mispricing as the fatal flaw of socialism.

Jay Lakner January 26, 2010 at 5:11 pm

Pro-IP-libertarian wrote:
“Now to head off claims that the examples aren’t equivalent, note that most anti-IP advocates claim that IP creators still have the use of their IP themselves, and can be first to market. In the “public claims on land” example land owners would still have use of their houses and living quarters for “personal use”, they would just have to cede their yards and estates to the public. Pretty equivalent.”

Scarce = rivalrous = two things can’t be used simultaneously. Have you misunderstood this point?

Other people using my land automatically forbid me from spontaneously going out and using it myself. Even for extremely large areas of land, what if my “use” of my land is the satisfaction that nothing is happening to my land? What if I bought it for the pleasurable feeling of knowing that a human-free ecology is developing there?

Your example is completely and totally incompatible with IP and this seems to have something to do with your misunderstanding of the concept of “rivalrous versus non-rivalrous”.

Pro-IP-libertarian wrote:
“Need to add: Note that it was Silas Barta that first pointed out that public claims on IP from the “duplication is equivalent to production” framing would lead to the mispricing of IP creation, similar to Mises’ exposure of mispricing as the fatal flaw of socialism.”

This has been blown out of the water over and over again. Intangible entities can still be exchanged despite not having an owner because of their non-rivalrous nature. Hence economic calculation is not skewed through lack of ownership.
In fact, it has been shown that assigning ownership to intangible entities does the exact opposite – it creates an economic calculation problem.

pro-IP-libertarian January 26, 2010 at 6:23 pm

Jay Lakner-

Scarce = rivalrous = two things can’t be used simultaneously. Have you misunderstood this point?

I understand it just fine. Although you should talk to Peter Surda, he distinguishes scarcity and rivalrousness.

If you’re going by that definition though, understand that IP is scarce. This is shown by you bothering to copy protected material. If IP wasn’t scarce you would just pluck other IP from the “tree of infinite” IP that wasn’t protected. Good IP – good creators and their creations – are scarce.

Other people using my land automatically forbid me from spontaneously going out and using it myself. Even for extremely large areas of land, what if my “use” of my land is the satisfaction that nothing is happening to my land? What if I bought it for the pleasurable feeling of knowing that a human-free ecology is developing there?

Same arguments apply to IP. Maybe IP owners like the feeling of knowing that no one can duplicate their work but them. After all, duplication is not production. A duplicator doesn’t homestead or create their own work.

Your example is completely and totally incompatible with IP and this seems to have something to do with your misunderstanding of the concept of “rivalrous versus non-rivalrous”.

Your perspective comes from the absurdity of equating duplication with creation. Creators and their creators are scarce. Otherwise free music services would have ended any file-sharing controversy. If IP is infinite, why not just copy unprotected works?

This has been blown out of the water over and over again. Intangible entities can still be exchanged despite not having an owner because of their non-rivalrous nature. Hence economic calculation is not skewed through lack of ownership.
In fact, it has been shown that assigning ownership to intangible entities does the exact opposite – it creates an economic calculation problem.

You may think so, but I haven’t seen this demonstrated. You are still operating under the assumption that duplication is equivalent to creation, when they are demonstrably inequivalent. Since they are inequivalent a model that equated them would be causing calculation problems. Trying to assume this inequivalency away doesn’t change it’s existence.

Now I realize there are different types of IP and some types are effected by this more than others, it still doesn’t completely change the argument.

Jay Lakner January 26, 2010 at 6:56 pm

pro-IP-libertarian,

The arguments you are putting forth seem very strange to me, as is the way you are explaining them. This usually means that the problem here is very fundamental. I’m guessing that this entire difference of opinion comes down to a fundamental disagreement on the nature of the Universe.

Unfortunately it is often very difficult to identify exactly where this disagreement lies.

Where to start? I know …
What do you think of the following statement?:

“Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before. (This is true of any human product, scientific or esthetic: man’s imagination is nothing more than the ability to rearrange the things he has observed in reality.)”

Magnus January 26, 2010 at 7:24 pm

The idea that copying is not production is plainly silly.

If you build a useful object, and I look over and make a copy, we made two useful objects. To see how wrong you are, imagine two publishers who decide to print up copies of the same book that is “out of copyright.” Think of something 200-300 years old. Don Quixote. Or older, like Aesop’s fairy tales. Printing these books is obviously a form of production. They are copies — not wrongful copies in the bizarro IP philosophy, but still copies, and yet making them is still a form of production.

You resent copiers, and think they ought to be punished. I get it. But still, pretending it’s not production is just dumb.

To use the form of one of your (rather tired) arguments against you, copying is OBVIOUSLY a form of production, because otherwise, the supposed copyright holder wouldn’t have any reason to object. The IP holder asserts this B.S. right to pattern-protectionism precisely BECAUSE the copyist is producing something that customers want. And that interferes with the SALES that the IP holder thinks he ought to be given without pesky competition.

Which brings me back to the point that none of you IP people want to address — the only “harm” that IP proponents can show arising from the act of copy-based production is a loss of market share. Copying entails no interference between uses of rivalrous goods. No physical displacement. No tangible rivalry at all.

Show me one other area of free market philosophy where maintaining a producer’s preferred market share is considered to be a cognizable, protected property interest.

No such thing.

Peter Surda January 27, 2010 at 10:27 am

Dear pro-IP-libertarian,

> I understand it just fine. Although you should talk to
> Peter Surda, he distinguishes scarcity and
> rivalrousness.
Not necessarily. I just remarked that the word “scarce” tends to distract IP proponents away from the actual issue.

I must also repeat what I said before. My opinion that non-rival-goods can’t be owned in an exclusive, non-unique way, is a conclusion, rather than a premise. It is what remains after eliminating faulty assumptions, mainly the causality theory of ownership and the objective identity of immaterial goods. Non-utilitarian IP proponents usually use at least one of those to define property. I think it’s possible, although unlikely, that some non-rival goods are not eliminated by this argument, but what is nowadays understood with IP is probably unaffected by this.

pro-IP-libertarian January 27, 2010 at 12:33 pm

Jay Lakner-

“Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before. (This is true of any human product, scientific or esthetic: man’s imagination is nothing more than the ability to rearrange the things he has observed in reality.)”

I assume this is Mises or someone and you are arguing from authority.

Doesn’t matter. Duplication can be distinguished from creation, otherwise everyone would create and no one would have to duplicate. Or no one would create and we would still be at subsistence level.

Creation exists by using one’s imagination, intellect, or some combination thereof and mixing it with their labor (which may include just thinking, thinking can be labor) to come up with a new idea, concept, design, or combination thereof. This is why it can be thought of as intellectual homesteading. And why it creates a natural rights based claim on individual intellectual property.

pro-IP-libertarian January 27, 2010 at 12:56 pm

Magnus-

If you build a useful object, and I look over and make a copy, we made two useful objects. To see how wrong you are, imagine two publishers who decide to print up copies of the same book that is “out of copyright.” Think of something 200-300 years old. Don Quixote. Or older, like Aesop’s fairy tales. Printing these books is obviously a form of production. They are copies — not wrongful copies in the bizarro IP philosophy, but still copies, and yet making them is still a form of production.

The notion that they are equivalent production is laughable. Stephen King’s newest book was produced with hours and hours of writing and rewriting, research and revision. Not pressing “print” or “download” on a computer. Also, King has a rare natural talent to produce compelling, entertaining novels and stories. So not only did you not put in the labor, you probably could not perform the equivalent labor even if you tried. This is because his talent is truly scarce. The “talent” necessary to press a button is near universal. So no, creation is not equivalent to production by any stretch of the imagination.

And equating the two would result in a gross mispricing in the market for IP.

You resent copiers, and think they ought to be punished. I get it. But still, pretending it’s not production is just dumb.

No, I just realize they are violating natural rights, which I don’t condone as a libertarian.

To use the form of one of your (rather tired) arguments against you, copying is OBVIOUSLY a form of production, because otherwise, the supposed copyright holder wouldn’t have any reason to object. The IP holder asserts this B.S. right to pattern-protectionism precisely BECAUSE the copyist is producing something that customers want. And that interferes with the SALES that the IP holder thinks he ought to be given without pesky competition.

Say what you will about my argument, at least it isn’t circular. Your argument relies on assuming creation and duplication are the same, they are not. And no, we went over your other point in this thread already. IP exclusion is just like real estate or radio broadcasting exclusion, there is plenty of room for competition left – just do your own creation/homesteading. Create your own horror novel. Oh, that’s right, the skill-set is truly scarce so that will be difficult…

Which brings me back to the point that none of you IP people want to address — the only “harm” that IP proponents can show arising from the act of copy-based production is a loss of market share. Copying entails no interference between uses of rivalrous goods. No physical displacement. No tangible rivalry at all.

Wrong. It throws the pricing mechanism off just like socialism does. Or like what would occur if exclusion was done away with in the real estate or radio wave markets. And note the arguments for exclusion in real estate/etc. are owner-focused, yet no one claims real estate owners are “claiming market share” when they want exclusion.

Show me one other area of free market philosophy where maintaining a producer’s preferred market share is considered to be a cognizable, protected property interest.

Just did. It’s called real estate. Again, arguments for exclusion are owner-focused yet no one accuses them of claiming ownership of market share. You are free to homestead or buy your own real estate and compete. Just like you are free to create or buy your own IP and compete.

pro-IP-libertarian January 27, 2010 at 1:06 pm

Peter Surda-

I must also repeat what I said before. My opinion that non-rival-goods can’t be owned in an exclusive, non-unique way, is a conclusion, rather than a premise. It is what remains after eliminating faulty assumptions, mainly the causality theory of ownership and the objective identity of immaterial goods.

Well then there are major problems here, because homesteading is based on causality. You cause ownership by mixing your labor with an object. Just like you cause ownership with IP by intellectual homesteading.

Non-utilitarian IP proponents usually use at least one of those to define property. I think it’s possible, although unlikely, that some non-rival goods are not eliminated by this argument, but what is nowadays understood with IP is probably unaffected by this.

And yet you’re left with the circular – and demonstrably absurd – concept that duplication equals production.

Jay Lakner January 27, 2010 at 1:12 pm

pro-IP-libertarian,

I was not arguing from authority. I just felt that Ayn Rand would explain it better than I could.

And your response was not exactly clear.

I want to know whether you agree or not that creation is simply the discovery of a new arrangement that tangible materials can take the form of?

Michael A. Clem January 27, 2010 at 2:02 pm

In that case, money is not scarce, and the banks should run 0% reserves. In fact they can spend all their depositors’ money, since obviously they are not using it at this time.
This was already addressed, but with different arguments. I say this argument fails because the value of the monetary unit is not equivalent to IP–the design on the currency is. Millions of people have the same design on their dollar bills, with no harm to others, but the quantity of currency in circulation obviously affects the value of money, to the benefit of first-takers and to the harm of latecomers.
It’s also not fair to compare this to the value or sales obtained or lost by the creators, because unlike money, there is not a direct, proportional relationship between illegal copying and lost sales. Each illegal copy is not equivalent to one lost sale. And while one can download a song and then buy it at a later date, it’s not possible to copy a dollar bill and then “buy” one later.

Peter Surda January 27, 2010 at 2:09 pm

Dear pro-IP-libertarian

(regarding harm from IP)
> Wrong. It throws the pricing mechanism off just
> like socialism does.
Just because the price of a good can change by the influence of external factors is insufficient to conclude that “the pricing mechanism is thrown off”. It is actually exactly the opposite: the pricing mechanism allows to reflect external factors in the price.

> Well then there are major problems here,
> because homesteading is based on causality.
It might be or might not be. That’s not the problem. The problem is that if you consider causality a sufficient condition for homesteading, it leads to, in my humble opinion, absurd conclusions. All causally related activities become potential rights violations. All positive externalities will become exposed to payment enforcement. I’ll use two examples by Walter Block (although he didn’t necessarily use it in this context) and two of my own:

(Block)
Using a deodorant will allow you to enforce payment from people who share the same vehicle when using mass transportation. A woman walking on the street with a miniskirt would be allowed to enforce payment from men looking at her.

(me)
Children would be property of their parents. Soviet Union would co-own Atlas Shrugged.

Unless you agree that these examples correctly reflect your idea of ownership, you need to admit that causality is not a sufficient condition for ownership, and the whole argument falls apart.

> And yet you’re left with the circular – and
> demonstrably absurd – concept that duplication
> equals production.
I fail to see how the “duplication does not equal production” leads to ownership of immaterial goods. Every act is unique. Why should that cause arbitrary sets of these acts to become “property” of one person?

pro-IP-libertarian January 27, 2010 at 2:59 pm

Jay Lakner-

I want to know whether you agree or not that creation is simply the discovery of a new arrangement that tangible materials can take the form of?

I wouldn’t put it that way. I would look at it as akin to intellectual homesteading. Mixing one’s labor – including thinking – to create a new combination of concepts, thoughts, materials, etc. for the first time. (And enclosing this by going to a recognized place to establish ownership – like one goes to establish homesteaded real property ownership.) Duplication would be distinguished as reproducing an existing, homesteaded piece of intellectual property.

pro-IP-libertarian January 27, 2010 at 3:23 pm

Michael A. Clem-

This was already addressed, but with different arguments. I say this argument fails because the value of the monetary unit is not equivalent to IP–the design on the currency is. Millions of people have the same design on their dollar bills, with no harm to others, but the quantity of currency in circulation obviously affects the value of money, to the benefit of first-takers and to the harm of latecomers.

Not quite in my opinion. At least in the US, they generally don’t care if you reproduce images on currency on other things as long as one doesn’t try to pass it off as currency. The US government just claims a right to produce what it considers legal tender and to exclude anything else as legal tender. They want to control production and supply for a particular use, they aren’t too concerned with the imagery as property.

It’s also not fair to compare this to the value or sales obtained or lost by the creators, because unlike money, there is not a direct, proportional relationship between illegal copying and lost sales. Each illegal copy is not equivalent to one lost sale. And while one can download a song and then buy it at a later date, it’s not possible to copy a dollar bill and then “buy” one later.

This reaches to the exclusion issue discussed earlier. Sure, you could still make money with real estate you couldn’t exclude the public from, but it would be difficult and strained. Likewise, you might not lose one sale for every song illegally copied, but there would certainly be some amount of legitimate sales crowded out. Plus there is still the issue of it being unilateral: the copier certainly wants the good or they wouldn’t bother copying, they just don’t want to bother agreeing on price and paying it. This has utilitarian as well as moral consequences.

Jay Lakner January 27, 2010 at 3:36 pm

Pro-IP-libertarian wrote:
“I wouldn’t put it that way.”

But do you agree?

pro-IP-libertarian January 27, 2010 at 4:07 pm

Peter Surda-

Just because the price of a good can change by the influence of external factors is insufficient to conclude that “the pricing mechanism is thrown off”. It is actually exactly the opposite: the pricing mechanism allows to reflect external factors in the price.

Yes, and under natural rights theory we use homesteading and exclusion to establish particular rights to property. This is reflected in price. Yet these pricing effects are considered acceptable.

Also, the whole pricing mechanism depends on ownership and bilateral agreement to transactions. Under the “duplication is equivalent to creation” model all IP is considered public domain and unilateral transactions are permitted. This is something libertarians don’t tolerate in an economic system for physical property, but it is somehow acceptable for some with IP.

(Block)
Using a deodorant will allow you to enforce payment from people who share the same vehicle when using mass transportation. A woman walking on the street with a miniskirt would be allowed to enforce payment from men looking at her.

Not quite. By selling homesteaded property for a particular use one would agree to particular externalities. IP owners would have to decide what products they are going to sell and in what format. To a large extent we already do this. The woman would have to decide whether she is just going to wear a miniskirt to look nice in a particular location or license a calendar where a mass market can see pictures of her in a miniskirt. Now if I hid a camera in her room without her consent and was charging people money to watch her that clearly would be me profiting from her image and would be subject to legal action. This would be supported under various natural rights arguments – self-ownership, homesteaded intellectual property, etc.

(me)
Children would be property of their parents. Soviet Union would co-own Atlas Shrugged.

Violates both self-ownership and homesteading, in both cases.

Unless you agree that these examples correctly reflect your idea of ownership, you need to admit that causality is not a sufficient condition for ownership, and the whole argument falls apart.

Not at all. First, some of the examples violate self-ownership principles. But the ones that don’t involve an owner decision to engage in a bilateral transaction taking externalities into account or safely ignoring them. McDonald’s knows its fries smell good too, but decide it is worth it to sell the fries and let some people get the smell for free. The miniskirt woman knows that some around her in places she chooses to go would receive a positive externality, but decides it is worthwhile. That still wouldn’t allow putting a camera in her room and charging for it, or making illegal copies of a licensed calendar, which are self-owned and/or homesteaded goods.

I fail to see how the “duplication does not equal production” leads to ownership of immaterial goods. Every act is unique. Why should that cause arbitrary sets of these acts to become “property” of one person?

The same dynamic that allows the creation of ownership in unowned land – labor and homesteading. The duplicated property wouldn’t exist without the created property. And the action of creation is rarer, and necessary for and superior to the action of duplication.

pro-IP-libertarian January 27, 2010 at 4:16 pm

Jay Lakner-

But do you agree?

Basically I agree with current IP law. Although I think there may be some room for changes, especially with patents.

I don’t have an exhaustive knowledge about how Rand felt about IP. So I don’t know the context of that quote and her overall beliefs so I can’t say outright whether I agree with all her views on IP. But the quote sounds OK.

Jay Lakner January 27, 2010 at 4:39 pm

pro-IP-libertarian,

Ok. That’s a start at least.

Now what if I were to say that all intangible entities are nothing more than possible arrangements that tangible materials can be formed into. In other words, every idea, story, concept, pattern etc is simply a possible arrangement that tangible materials can take.

For example:
Every story is nothing more than an arrangement of ink symbols on paper.
Every song is nothing more than a pattern of air disturbances (sound waves).
Every TV show is nothing more than a pattern of photons of light.
Every thought is nothing more than a pattern of neurons firing in a human brain.

Would you agree with me on this?

Peter Surda January 28, 2010 at 4:09 am

Dear pro-IP-libertarian,

> Yet these pricing effects are considered acceptable.
Exactly. But you neglect to explain how to differentiate the “acceptable” from the “unacceptable”.

> Also, the whole pricing mechanism depends on
> ownership and bilateral agreement to transactions.
Exactly. But IP proponents insist that a third party’s (the IP “owners”) agreement is a requirement.

> This is something libertarians don’t tolerate in an
> economic system for physical property, but it is
> somehow acceptable for some with IP.
The only reason for this is that IP proponents fail to demonstrate how is the third party “owner” of the “property” in question with all the other necessary conditions (non-exclusivity and non-uniqueness). Should they manage to do that, I would have no problem with agreeing with enforcing rights thereupon.

> By selling homesteaded property for a particular
> use one would agree to particular externalities.
I don’t understand. Who would agree to what? The way externalities manifest are not always foreseeable. You can’t agree to what you can’t foresee.

> IP owners would have to decide what products
> they are going to sell and in what format.
They can do that without IP just as well. IP just allows them to regulate certain externalities in way they can’t without. But they still can’t control externalities per se.

> The woman would have to decide whether she is
> just going to wear a miniskirt to look nice in a
> particular location or license a calendar where a
> mass market can see pictures of her in a miniskirt.
Exactly. That’s the whole point. No special laws or “property protection” is necessary. Contractual agreements are sufficient to handle externalities.

>> Children would be property of their parents.
>> Soviet Union would co-own Atlas Shrugged.
> Violates both self-ownership and homesteading, in
> both cases.
If that is your conclusion, then IP violates self-ownership (of one’s mind) and homesteading (of physical objects) too. You can’t have it both ways. Just like copyright “preempts” ownership of books, higher level immaterial ownership preempt lower level ownership in my examples.

> First, some of the examples violate self-ownership
> principles.
Like I said, this would also mean that IP violates the self-ownership principle. It’s just a matter of where you draw the line. That refutes the causality theory of ownership.

> But the ones that don’t involve an owner decision
> to engage in a bilateral transaction taking
> externalities into account or safely ignoring them.
Like I said, this proves me right rather than you. Externalities should be handled by contracts rather than special laws.

> The duplicated property wouldn’t exist without the
> created property.
Let’s ignore now the causal issue which I refuted above. What you are otherwise saying is that if I work harder, I have more claim on the beneficial outcomes than those that work less hard. That’s the labour theory of value.

pro-IP-libertarian January 28, 2010 at 4:45 pm

Jay Lakner-

Every story is nothing more than an arrangement of ink symbols on paper.
Every song is nothing more than a pattern of air disturbances (sound waves).
Every TV show is nothing more than a pattern of photons of light.
Every thought is nothing more than a pattern of neurons firing in a human brain.

I think I see where you are going: You seem to be trying to lead me through a step by step process through which duplication is equated with creation. Sorry, not buying.

You forget about non-IP intangibles. Things like shares of stock, bonds, etc. These represent claims and contractual obligations – patterns, if you will. Are these just patterns? Can I print an endless amount of IBM share certificates? This is great – how many do you want for your house?

Besides that, you still have the scarcity problems. If IP – patterns – are infinite, why bother copying protected IP? Just copy some from the infinite supply from someone that doesn’t object. Oh, that’s right – IP isn’t really scarce.

pro-IP-libertarian January 28, 2010 at 5:25 pm

Peter Surda-

Exactly. But you neglect to explain how to differentiate the “acceptable” from the “unacceptable”.

I think I’ve stated it several times. Same as real estate – homesteading. Then once IP is homesteaded you have to come to a bilateral agreement with the homesteader.

Exactly. But IP proponents insist that a third party’s (the IP “owners”) agreement is a requirement.

No, there’s only two parties: owners(which includes licensees) and customers. Someone that isn’t licensed isn’t a proper party to the transaction, like someone trying to sell a bridge that they don’t hold title to. Someone that doesn’t bother to come to an agreement with the owners isn’t a party either, like someone tresspassing, etc.

The only reason for this is that IP proponents fail to demonstrate how is the third party “owner” of the “property” in question with all the other necessary conditions (non-exclusivity and non-uniqueness). Should they manage to do that, I would have no problem with agreeing with enforcing rights thereupon.

The owner establishes ownership through homesteading of unique or novel creations. Then exclusion is enforced, just like with real property.

This isn’t a “right” to market share just as real property isn’t a “right” to market share. Competitors are free to homestead or purchase their own IP and compete.

I don’t understand. Who would agree to what? The way externalities manifest are not always foreseeable. You can’t agree to what you can’t foresee.

Well, the IP owner will have to consider these. Someone who is not the owner is just that – not the owner – and is subject to whatever sanctions are available to the actual owner. Beyond that I would need examples to comment on.

They can do that without IP just as well. IP just allows them to regulate certain externalities in way they can’t without. But they still can’t control externalities per se.

But like property rights IP allows the owner to address the most common and harmful ones. Especially to the overall market from a utilitarian perspective.

Exactly. That’s the whole point. No special laws or “property protection” is necessary. Contractual agreements are sufficient to handle externalities.

Not quite. In the mass market scenario some slippery sorts will claim she doesn’t have self-ownership, ownership of her image. Then they will claim they weren’t bound by the agreement she had with the licensed calendar printer and will copy and print their own calendar. IP rights prevent this.

If that is your conclusion, then IP violates self-ownership (of one’s mind) and homesteading (of physical objects) too. You can’t have it both ways. Just like copyright “preempts” ownership of books, higher level immaterial ownership preempt lower level ownership in my examples.

Not at all. The homesteader only has ownership of their homesteaded IP. J. K. Rowling only owns her latest book, you are free to homestead your own magic and fantasy books by writing your own. Homesteading only stops you from copying hers without her permission.

Like I said, this would also mean that IP violates the self-ownership principle. It’s just a matter of where you draw the line. That refutes the causality theory of ownership.

Only if you want access to other’s homesteaded property without coming to an agreement with them. It’s pretty elegant that way. You are free to write or buy your own boy wizard stories, why do you have to copy hers?

Also this would seem to help the crowd that claims they want to “encourage” writers and artists to be more productive – more new creations will be produced because the old ones can’t be created without permission.

Like I said, this proves me right rather than you. Externalities should be handled by contracts rather than special laws.

Not at all. It heads off the claims of third parties that want access to homesteaded property without coming to an agreement.

What you are otherwise saying is that if I work harder, I have more claim on the beneficial outcomes than those that work less hard. That’s the labour theory of value.

Not at all. It just means you have the right to sell what you homestead. It doesn’t force anyone to buy. The labor theory of value forces compensation for labor, usually from funds taken by force from the collective. Again, there is plenty of worthless IP homesteaded, and no one is guaranteed purchases.

Jay Lakner January 28, 2010 at 5:35 pm

pro-IP-libertarian,

What I am trying to do is to work out how you view existence. My questions are merely ways of gaining insight into how you think so that I can determine the exact area where our disagreement lies. Once we work out exactly where our point of view differs, then we can have a proper discussion on the subject.

In my view, existence is composed of tangible entities in specific arrangements. Nothing more.

Stocks and bonds are also just possible arrangements that tangible materials can take the form of.

I believe that a common error that most people make is that they confuse the subjective meaning we humans assign to entities with the entities themselves. (You may not consider this to be an error at all)

For example:
Harry Potter the book is composed of a configuration of ink symbols on pieces of paper.
Harry Potter the movie is composed of a configuration human actors, stages, lighting effects, etc.
The two are very different. However, humans assign the same meaning to the book as they do to the movie. So an individual might come to the conclusion that they are the same story. But in reality they are not.

My question to you is:
Do you believe that Harry Potter the book is the same as (or similar to) Harry Potter the movie?
Or, do you agree with me that they are totally different and the perceived similarity is just a result of the subjective meaning humans place upon them?

Peter Surda January 29, 2010 at 3:00 am

Dear pro-IP-libertarian,

your whole premises rest on an arbitrary definition of “homesteading”. Just like many other IP proponents, you draw an arbitrary line on the causality scale. Maybe it would help if you tried to explain where exactly you draw the line, then you’d realise it’s arbitrary.

> Then once IP is homesteaded you have to come to
> a bilateral agreement with the homesteader.
This is just a first step in the argument. In the second one, you need to establish how far the homesteading reaches and what takes priority if there is a conflict. That is the whole point of my objection. Causality does not answer that. It does not answer whether children’s ownership of themselves or parent’s ownership of themselves takes precedence (logically, the parent’s should, because it is predates the child). It does not answer whether only “good” influences should be considered, there is no reason why Soviet Union should not co-own Atlas Shrugged. Besides, back to my original objection, there is no way to distinguish between immaterial goods and externalities. But according to theory, you can own the former but not the latter.

> Someone that isn’t licensed isn’t a proper party
> to the transaction …
What is “proper party”? That’s just another arbitrary assumption. Governments also claim that some transactions are invalid without them being involved, but that does not make it true.

> The owner establishes ownership through
> homesteading of unique or novel creations.
Another meaningless construct that answers nothing.

> Then exclusion is enforced, just like with real
> property.
Exclusion in material goods is not “enforced”, it “is”. It is the natural feature of those things. It exists regardless of laws or people.

> This isn’t a “right” to market share …
It is.

> Competitors are free to homestead or purchase
> their own IP and compete.
This is only valid from your point of view. From my point of view, it’s the opposite: competitors homestead new grounds, and a monopoly prevents them from using it. From my perspective, those new grounds are externalities of the original.

(externalities)
> Well, the IP owner will have to consider these.
Exactly! IP owner, just like anyone else causing externalities, should consider the effects before making his move, instead of complaining how little he gained by using an infeasible business model.

> But like property rights IP allows the owner to
> address the most common and harmful ones.
There are already property rights in the physical, those are sufficient to address the most common and harmful effects of undesired activities.

> In the mass market scenario some slippery sorts
> will claim she doesn’t have self-ownership,
> ownership of her image.
This is merely another stage of the problem (i.e. you are trying to cure the symptom rather than the cause). The illicit photographer trespassed on physical property. When a woman with a miniskirt goes to a street, she needs to make herself informed about the rules regarding photographing that the street owner does (some might permit photos, some might not). There is no need for IP from this perspective.

> The homesteader only has ownership of their
> homesteaded IP.
But what does this mean? I fail to see how this can mean owning anything apart from that which is in one’s own head. The line where you draw the distinction between immaterial goods and externalities is arbitrary. That’s what you need to recognise. IP is the claim of ownership of other people’s minds. It does not bother you here, but it bothers you with children and Ayn Rand. You need to explain this dichotomy.

Peter Surda January 29, 2010 at 3:03 am

Dear Jay,

> I believe that a common error that most people
> make is that they confuse the subjective meaning
> we humans assign to entities with the entities
> themselves.
Very well put Jay, this is what I’m trying to get the IP proponents to recognise and they seem to have a hard time with it.

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